Guerrero v. United States of America

Filing 8

OPINION: For the foregoing reasons, the Petitioner's motion to vacate his sentence is denied. (As further set forth in this Order.) (Signed by Judge Robert W. Sweet on 2/9/2018) (cf)

UN ITE D STATE S DI STRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------- - ----------------- x

ANTON I O GUERRERO ,
17 Civ . 7893

Petit i oner ,
- against -

OPIN I ON

UN ITE D STATES ,
Respondent .
----- - ------------------------------- x

APPEARANC E S :

Pro Se Peti ti oner
ID No . # 82375 - 004
Low Secur i ty Correct i onal Inst i t u tion , All enwood
P.O . Box 1000
White Deer , PA 1 7887
By : An t onio Guerrero

Attorneys for Respondent
GEOFFREY S . BERMAN
United States Attorney
Southern District of New York
86 Chambers Street , 3rd Floor
New York , NY 10007
By:
La u rie A . Korenbaum , Esq .

1

(RWS)

Sweet , D.J.

Petitioner - defendant Antonio Guerrero

("Guerrero " or

the " Petitioner " ) has moved pursuant to 28 U. S . C . § 2255 to
vacate his twenty- five year sentence of imprisonment

(the

" Petit i on " ) , i mposed by this Court after he was found guilty
following a jury tria l of two counts of intentional mu rder
during the course of a drug conspiracy , in viola t ion of 21
U. S . C . § 848(e)

(hereinafter , "Section 848(e) " ) . Based on the

facts and conclusions set forth below , the Petitioner ' s motion
is denied .

I.

The Facts & Prior Proceedings

The factual background and procedural history of this
litigation is detai l ed in prior Opinions of this Court ,
familiar i ty with which is assumed.

Guerrero , No . 9 Cr . 339 (RWS)

See, e.g. , United States v.

(S.D . N.Y. Dec . 1 , 2011)

(motion

for new tria l and judgment of acquittal) ; United States v .

Guerrero , No . 9 Cr . 339 - 001

(RWS)

(S.D . N. Y. Jan . 1 9 , 20 1 2)

(sentencing opinion) ; United States v . Guerrero , No . 9 Cr . 339
(RWS)

(S . D. N. Y. Aug . 7 , 20 1 3)

(mot i on for judgment of

acquittal) ; United States v. Guerrero, No.
(S . D. N. Y. Oct . 2 , 2014)

9 Cr. 339

(amended sentencing op i n i on).
2

(RWS)

The indictment ("Indictment") was filed on April 7 ,
2009, containing eight counts for the September 3 , 1994 murders
of Livino Ortega ("Ortega") and Fernando Garrido ("Garrido ");
the October 9 , 1994 murder of Leonard Overman ("Overman") and
non-fatal shooting of Alvino Wade ("Wade" ); and the December 13,
1994 murder of Carmen Diaz ("Diaz") and non-fatal shooting of
Genera Rodriguez

("Rodriguez") . The shootings all took place in

the Bronx, and were perpetrated by members of the Solid Gold
drug distribution organization , which at that time was operating
at 173 r d Street and Boston Road. Two counts named Guerrero as a
defendant. See Dkt. 1. Counts One and Two charged Guerrero with
the intentional murders of, respectively, Ortega and Garrido in
violation of 21 U.S.C.

§

848(e) (1) (A) and 18 U.S.C.

§

2.

The jury trial of Guerrero and two co - defendants
commenced on April 28 , 2010 , and the jury reached a verdict on
June 4 , 2010 , finding Guerrero guilty of Counts One and Two. On
February 7, 2011 , Guerrero moved for a judgment of acquittal or ,
in the alternative, a new trial, pursuant to Federal Rules of
Criminal Procedure 29 and 33. See Dkt. 114. Guerrero argued that
there was insufficient evidence supporting that he had committed
the murders, and that the Government was barred by the
applicable statute of limitations from presenting ev idence of
the narcotics conspiracy that was a predicate to the Section
3

848 (e) (1) (A) murders. On June 1, 2011, Guerrero filed a
supplemental memorandum in support of his motion, arguing that
the Government knowingly presented inconsistent testimony, trial
counsel was ineffective, and the Government was required to
convict Guerrero of the predicate drug crime , which it did not,
in order to sustain the Section 8 4 8 ( e) ( 1) (A) convictions. See
Dkt. 124. Guerrero's motions were denied. See Dkt. 131. On April
2, 2012, Guerrero filed another supplemental Rule 29/33 motion,
arguing that trial counsel had been ineffective for failing
sufficiently to impeach the ballistics evidence at trial.

See

0kt. 141. An evidentiary hearing was held and this motion was
denied on September 5, 20 12. See Dkt. 160.

On October 6 , 2014, Guerrero was sentenced to a term
of twenty-five years of impris onment on each of Counts One and
Two , to run concurrently, followed by a five- year term of
supervised release. See Dkt. 198. Guerrero filed an appeal of
his conviction on October 29, 20 14. See Dkt. 200. On March 3,
2016, the Second Circuit affirmed the conviction and remanded
for the sole purpose of making a clerical correction to the
judgment's description of Count One.

Petitioner moved on October 11, 2017 to vacate, set
aside, or correct his conviction and/or sentence pursuant to 28
4

U.S.C. § 2255(a) . Petitioner seeks collateral relief on the
following three bases:

(1)

that his trial and appellate counsel

were constitutionally ineffective for failing to argue that a
five-year statute of limitations applied to his two murder
counts due to the Government's failure to claim or provide that
those crimes were punishable by death;

(2)

that his trial

counsel was constitutionally ineffective for failing to argue
his actual innocence based on the fact that the Government did
not prove an element of the murder counts, namely , that he was
involved in a conspiracy to distribute 280 grams of crack
cocaine; and (3)

that his trial counsel was constitutionally

ineffective for failing to challenge the inclusion of two
convictions that occurred on September 8 , 1993 and October 20 ,
1995 in the calculation of his Criminal History Category
("Criminal History Category").

Petitioner's request for an extension of time in which
to file a supporting memorandum of law was granted, and the
motion was taken on submission on December 20, 2017 and marked
fully submitted at that time.

1

1

On January 28 , 2018 , almost a month after the motion was
marked fully submitted, Petitioner submitted a traverse brief in
response to the Government's opposition. Due to its untimeliness, this
brief was not considered in ruling on the present motion. However,
even if the traverse brief had been considered, its contentions are
unavailing.
5

II.

The Applicable Standard

Pursuant to 28 U.S.C. § 2255 , "a convicted person held
in federal custody [may] petition the sentencing court to
vacate , set aside or correct a sentence." Reyes v . United

States , No. 07 Civ. 10943 (SAS) , 2009 WL 274482, at *2

(S.D.N.Y.

2009). A properly filed§ 2255 motion must allege that: "(1) the
sentence was imposed in violation of the Constitution or laws of
the United States;

(2) the sentencing court was without

jurisdiction to impose such a sentence;

(3) the sentence was in

excess of the maximum authorized by law; or (4)
otherwise subject to collateral attack." Id.,

the sentence is

at *3. As such, "a

collateral attack on a final judgment in a federal criminal case
is generally available under§ 2255 only for a constitutional
error, a lack of jurisdiction in the sentencing court , or an
error of law or fact that constitutes 'a fundamental defect
which inherently results in a complete miscarriage of justice.'"

United States v . Bokun, 73 F.3d 8, 12 (2d Cir. 1995)
Hill v. United States, 368 U.S. 424, 428
Massaro v. United States,

(quoting

(1962)); see also

538 U.S. 500, 504

(2003)

(holding that

"an ineffective -assistance - of-counsel claim may be brought in a
collateral proceeding under§ 2255, whether or not the
petitioner could have raised the claim on direct appeal."); see

id.

(quoting United States v . Addonizio, 442 U.S. 178, 184 &
6

n. 1 1 ( 1 979)

("T he reasons f or na r row l y l i mi ting the rel i ef

permi tted under§ 2255 - a respect for the f i nality of crimi nal
sentences , the efficient a ll oca ti on of j u dicial reso ur ces , and
an aversion to retrying is s ues yea r s after the underlying events
took p l ace - are ' we ll known and bas i c to our adversary system of
just i ce .'" ) .

III . The Petitioner's Motion to Vacate is Denied Because He Has
Failed to Establish A Claim for Ineffective Assistance of
Counsel

The Pet i tioner asserts t h at his f ormer counsel was
constitutionally inef f ective on three bases suf f icient to
warrant granting the present mot i on t o vacate . Pursuant to
Strickland v . Washington , 466 U.S . 668

(1984) , a claim of

ineffective assistance of counsel requ i res a show i ng t hat : "l )
the defense counsel ' s per f ormance was objective l y u nreasonable ;
and 2) the defic i ent per f ormance prejudiced the defense ." Kovacs
v . United States , 744 F . 3d 44 , 49 (2d Ci r. 2014) . To

su f f i c i ent l y state a claim under the f i rst prong of Strickl and,
"a defendant must al l ege and demonstrate that h i s counse l' s
error c l ear l y resul t ed from neglect or ignorance , rather than
from i nformed professional de l iberation. " United States v .
Bosch , 584 F . 2d 1 1 13 , 1 1 21

( 1 st Cir . 1978)
7

(internal quotation

marks and citation omitted). Put another way, "[a]n attorney has
a duty to research the applicable law and to advise his client
in such a way as to allow him to make informed choices, when the
attorney undertakes to represent a criminal defendant." United

States v. Khalaf, 116 F. Supp. 2d 210, 213

(D. Mass. 1999)

(citation omitted). The second prong of Strickland demands that
the Petitioner demonstrate that "but for counsel's alleged
errors,

'the result of the proceeding would have been

different.'" Nangia v. United States, No. 11 Civ. 6056 (RMB),
2012 WL 4513477, at *2

(S.D.N.Y. Oct. 2, 2012)

(citing

Strickland, 466 U.S. at 689).

First, Guerrero alleges that his trial and appellate
counsels failed to challenge the five-year statute of
limitations for a non-capital offense pursuant to 18 U.S.C. §
3282. The Government argues that the statute of limitations
theory put forward by the Petitioner does not apply because
Section 848(e) is potentially a capital offense, and such an
offense does not carry a statute of limitations. As such, the
Government argues that Petitioner's counsel could not have been
ineffective because it did not make a legal error in failing to
challenge the statute of limitations.

8

The Petitioner has failed to demonstrate that his
counsel was constitutionally ineffective for failing to object
on the basis of the Government's violation of the statute of
limitations. Critically, "[a]n indictment for any offense
punishable by death may be found at any time without
limitation." See 18 U.S.C. § 3281. The Second Circuit has found
that "[a]n offense 'punishable by death,' within the meaning of
§ 3281, is one for which the statute authorizes death as a
punishment, regardless of whether the death penalty is sought by
the prosecution or ultimately found appropriate by the
factfinder or the court." United States v.
59

Payne,

591 F.3d 46,

(2d Cir. 2010). Thus, because Guerrero's violations of

Section 848(e) "may be punishable by death," 2 there is no statute
of limitations barring his prosecution for the murder of Ortega
and Garrido. Accordingly,

Petitioner's counsel could not have

been constitutionally defective for failing to object on this
basis.

2

Section 848(e)

reads in full:

[A]ny person engaging in an offense punishable
under Section 841 (b) (1) (A) of this title . . . who
intentionally kills . . . or causes the intentional killing
of an individual and such killing results; shall be
sentenced to any term of imprisonment, which shall not be
less than 20 years and which may be up to life
imprisonment, or may be sentenced to death.
2 8 U.S. C.

§

8 4 8 ( e) ( 1) (A) .

9

Second, Petitioner alleges that his counsel was
constitutionally ineffe ctive for failing to pursue the claim
that Guerrero is "actually innocent" 3 of the two Section 848(e)
murder counts. He argues that because the Government failed to
prove to the jury an essential element of the Section 848(e)
offense , specifically that Guerrero had engaged in a drug
conspiracy to distribute 280 grams (rather than 50 grams) of
crack coca ine, his counsel should have made the claim that
Guerrero had not been found guilty by the jury as to the 280
gram charge . The Government rightly notes that Petitioner's
counse l in fact did raise this argument to the Second Circuit on
direct appeal, so cannot be found to have been constitutionally
ineffective in failing to bring it.

By way of background, at the time that Guerrero was
indicted in 2009 and at the time of his conviction in 20 1 0 , a
violation of 21 U.S.C.

§

84l(b) (1) (A) required proof of a

narcotics conspiracy or of narcotics distribution involv ing a
minimum of 50 grams of crack cocaine. By the time Guerrero was

3

For context , and as relevant to this motion, in order to
establish actual innocence, "petitioner must demonstrate that, 'in
light of all the evidence, it is more likely than not that no
reasonable juror would have convicted him.'" Bousley v. United States,
523 U.S. 614 , 623 (1998) (quoting Schlup v . Delo, 513 U.S . 298 , 327-28
(1995)) (internal quotation omitted). This standard is demanding and
tenable pleas of this nature are rare. See McQuiggin v. Perkins, 569
U.S. 383, 386 (2013) .

10

sentenced in 2014 , the Fair Sentencing Act

("FSA") had been

enacted , requiring a showing of at l east 280 grams of crack
cocaine . In his direct appeal , Petitioner ' s counsel specifica ll y
raised the argument that because the United States Supreme Court
had deemed the FSA to apply retroactively to defendants who
committed crack cocaine offenses before August 3, 2010 , but who
had yet to be sentenced as of that date , Guerrero ' s conviction
must be vacated . See United States v. Guerrero, 8 1 3 F . 3d 462 ,
465

(2d Cir. 2016)

("Guerrero argues that the FSA compels

vacatur of his conviction."). Indeed , Guerrero's counsel did
raise this argument , and the Second Circuit rejected it. See id .
( "This argument misreads

§

8 4 8 ( e) ( 1) (A) , misunderstands the FSA ,

and misapplies Dorsey.

The crime is complete at the time

of the murder , see 21 U.S.C.

§

848 (e) (1) (A) , and it is as of

that time that the statute ' s drug trafficking element is
measured . "). As such , this claim is similarly denied .

Third, Petitioner argues that his counsel was
constitutionally ineffective in fai l ing to object to the
inclusion of Guerrero ' s two prior state convictions in the
calculation of his Criminal History Category. However , in
calculating the Criminal History Category, United States
Sentencing Guideline ("U . S . S . G. ") Section 4A.2(e) (2) provides
that " [a]ny other prior sentence that was imposed within ten
11

years of the defendant's commencement of the instant offense is
counted ." See U.S.S.G.

§

4A.2(e) (2). Guerrero committed the

murders of Ortega and Garrido on September 3, 1994, so this is
the date upon which Guerrero commenced the instant offense. As
to Guerrero's two prior convicti ons , first, he was convicted on
September 8 , 1993 for attempted assault in the third degree,
resulting in a sentence of 30 days of incarceration. Second,
Guerrero was convicted on October 20 , 1995 for criminal
possession of a controlled substance in the second degree,
resulting in a sentence of three years to life. The Court
applied one criminal history point as t o the first convict i on
and three as to the second conviction, resulting in a sum total
of four criminal history points, and placing Guerrero in
Criminal Hist ory Category III. Because the prior convictions
rest c l early within the ten year timeline provided for in
Section 4A. 2 (e) (2), the Court 's previous calculation of
Petitioner's Cr iminal History Category is not in error .
Accordingly, Petitioner's counsel was not ineffective for
failing to challenge this categorization.

12

IV.

Conclusion

For the foregoing reasons, the Petitioner's motion to
vacate his sentence is denied.

It is so ordered .

New York, NY
February
2018

1,

ROBERT W. SWEET
U.S.D.J.

13